The surprising connection between 'take a knee' protests and Citizens United

Elizabeth C. Tippett, University of Oregon

Updated 8:03 am, Friday, September 29, 2017

(The Conversation is an independent and nonprofit source of news, analysis and commentary from academic experts.)

Elizabeth C. Tippett, University of Oregon

(THE CONVERSATION) Citizens United, the Supreme Court ruling that some fear is destroying American democracy, may also be showing us how to heal it.

The most recent example of this is the reaction to President Donald Trump’s comments suggesting that sports owners should fire players who kneel during the national anthem. As the president does so often, he placed business leaders in the difficult position of deciding whether to speak out at the risk of alienating customers and courting further controversy.

In this case, many league officials and owners chose to do just that, labeling Trump’s words “divisive” and defending their players’ right to “express themselves freely on matters important to them.” Some owners “took a knee” alongside their players.

While corporate speech is often assumed to favor only conservative causes, my research on attorney advertising reveals the extent to which free speech rights for companies also advances causes important to liberals.

I would argue that Citizens United – a Supreme Court opinion that has produced bitterly partisan reactions – ironically offers a pluralistic vision of corporate speech as well as a full-throated defense of the kind of political speech we are now witnessing from business leaders.

Whether to speak out when Trump takes a position that is at odds with the rights of their employees or their own or company’s values has become a fundamental dilemma for many business leaders in the Trump era.

Many have done so on Charlottesville, climate change, transgender service in the military and Deferred Action for Childhood Arrivals. Others have stayed silent, seeming to support the notion that inserting themselves into political controversies would be to step out of bounds.

In this view, business should be separate from politics, and corporations should leave political discourse to private citizens. But for better or worse, our system protects business leaders speaking up. And the Supreme Court’s ruling in Citizens United describes why it’s so important.

In 2010, Citizens United v. Federal Election Commission overturned a law that limited corporate finance of certain political ads on First Amendment grounds. The reaction from liberals and those who favor limits on campaign finance was fierce.

President Barack Obama famously criticized the opinion during a State of the Union address, with the justices who issued the ruling sitting a few feet away:

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“I don’t think American elections should be bankrolled by America’s most powerful interests, or worse, by foreign entities. They should be decided by the American people.”

According to a Time magazine survey of law professors, the opinion ranks among the worst since 1960.

And yet, like any political lightning rod, Citizens United is both less and more than it seems.

Constitutional scholar Justin Levitt characterized the opinion as an incremental change from previous law, which offered corporations no shortage of options for political influence. Another study found that companies spent more on politics after Citizens United but it ultimately hurt shareholders – it was essentially a form of corporate waste. Spending additional corporate dollars on campaigns awash in advertising may not produce much of a return on investment.

Beyond its legal impact, Citizens United offered a vision of democracy that embraces the unique and important role that business leaders play in political discourse. In other words, exactly what we’ve seen when business leaders stand up to Trump.

Citizens United stands in part for the idea that the First Amendment provides strong protection for political speech, even if it originates from a company. Corporations may not be people, but, to paraphrase the movie “Soylent Green,” they are made of people.

In this view, corporations are groups of people on par with labor unions or nonprofits, and their joint viewpoints are deserving of protection.

At a time of deep partisan division, business leaders may be the rare voice deemed credible across the political spectrum. Small businesses are among the few remaining institutions that inspire a high level of confidence from both Republicans and Democrats. Tech companies also still enjoy high levels of trust. Importantly, among those who are losing confidence in the “system,” business is seen as the most trusted institution.

To this, one might respond, why ruin a good thing? Perhaps business leaders should lie low and preserve their reputation. But it is a mistake to assume that any statements in opposition to Trump are themselves divisive.

In this regard, even diluted corporate rhetoric offers the comparative benefit of articulating a few things that Americans have in common. After Charlottesville, the CEO of Campbell Soup – a symbol of mainstream values if there ever was one – issued a statement that “racism and murder are unequivocally reprehensible.” It may not be revolutionary, but at least it’s a point upon which virtually every American can agree.

Citizens United also argued that corporations have a unique viewpoint in the marketplace of ideas. In this conception of speech, corporate voices are worth protecting because voters find them valuable or important. As the Supreme Court explained:

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“On certain topics corporations may possess valuable expertise, leaving them the best equipped to point out errors or fallacies in speech of all sorts, including the speech of candidates and elected officials.”

In this vein, corporations represent a credible source of information and context on policy matters.

The Trump administration’s decision to terminate DACA is often invoked as a moral issue. However, in a lawsuit against the administration, tech leaders explained that it was also a business issue, describing how its termination will affect their ability to recruit and retain top talent. Likewise, when NFL owners and coaches defend their players, it’s an opportunity to provide context for how the kneeling controversy relates to racial justice.

To be sure, Citizens United has had some of the negative impact liberals feared. In particular, one study estimated that corporate spending following Citizens United measurably improved Republican prospects in state legislatures.

When corporations have the option to engage in unlimited spending, it gives them a louder voice than others in the electoral process.

Nevertheless, the kind of statements we’ve heard from NFL and NBA team owners offers a counterpoint to the kind of corporate speech most feared by commentators following Citizens United – that of faceless corporations pouring money into elections in service of their “greedy ends.” Instead, these statements have an intensely personal character. They show leaders sharing their own personal experiences and how those experiences are reflected in the organizations they run.

When NFL team owner Shahid Khan linked arms with his players during the national anthem before a game, it sent a symbolic message to his players – and to everyone watching – about his vision of an inclusive America that honors diversity “in many forms – race, faith, our views and our goals.”

It may not be the kind of corporate speech that we imagined. But it’s exactly what we need.

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